Supreme Court Seems Divided Over ATF Bump Stock Regulation

Authored by Sam Dorman via The Epoch Times,

The Supreme Court seemed divided during oral argument on Feb. 28 over whether it would uphold the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) regulation prohibiting ownership of bump stocks.

That regulation came after the 2017 mass shooting in Las Vegas where a gunman used bump stock-equipped firearms. It reversed years of ATF interpretations allowing non-mechanical bump stocks, or those without a spring.

In doing so, ATF reinterpreted a post-Prohibition law that banned the use of machine guns. Unlike other gun rights cases, the attorneys in this case—Garland v. Cargill—didn’t talk much about the Second Amendment. Rather, they sought to convince the justices that the phrases “automatically” and “single function of the trigger” within federal law either did or didn’t apply to bump stocks.

Justice Clarence Thomas, who wrote an opinion from 2022 upholding gun rights, peppered the Biden administration with questions focused on teasing out the differences in operating a firearm with or without a bump stock.

Much of the debate focused on whether bump stocks allowed a single trigger pull to initiate a process by which bullets were rapidly released.

Jonathan Mitchell, the New Civil Liberties Alliance attorney arguing for Michael Cargill, repeatedly emphasized that bump stocks only allowed one bullet per trigger pull. He also argued that firing with bump stocks didn’t meet the statutory language of “single function of the trigger” due to grammatical reasons and the fact that bump stock users had to apply pressure to maintain accelerated fire.

Principal Deputy Solicitor General Brian Fletcher and Justice Ketanji Brown-Jackson suggested instead that bump stocks allowed users to initiate a process with the bump stock after a single pull of the trigger.

“Once the shooter presses forward to fire the first shot, the bump stock uses the gun’s recoil energy to create a continuous back-and-forth cycle that fires hundreds of shots per minute,” Mr. Fletcher said.

Justice Amy Coney Barrett told Mr. Fletcher that she was “entirely sympathetic to your argument,” stating that “this is functioning like a machinegun would.” She questioned, however, why Congress didn’t pass legislation to cover bump stocks “more clearly.”

The case arose from the U.S. Court of Appeals for the Fifth Circuit, which ruled in favor of Mr. Cargill while noting that the legal rule of lenity required they rule against the government when the meaning of a statute was unclear.

NCLA President Mark Chenoweth told The Epoch Times he thought the Court would rule in favor of Mr. Cargill given its textualist composition.

“We have a majority of justices who are textualists, and they‘ll look at the text, and they’ll look at the way that the gun functions, and I think that they will decide that the bump stock is on the outside of the machinegun ban.”

The National Firearms Act

Justices Samuel Alito and Brett Kavanaugh raised concerns about how ATF’s 2018 regulation would apply to people who later owned bump stocks. But most of the questioning focused on how bump stocks operate, the wording of the National Firearms Act, and Congress’ intent in passing the law in 1934.

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The three liberal justices seemed skeptical of Mr. Mitchell’s arguments—particularly Justices Elena Kagan and Ketanji Brown-Jackson, who suggested he was asserting an irrelevant distinction for the federal law involved.

Both questioned whether the overall thrust of the 1934 law was intended to prevent use of devices like bump stocks.

“As far as I can tell, the sort of common usage of the word ‘function’ is not its operational design. It’s not the mechanics of the thing. It is what it achieves, what it’s being used for,” Justice Jackson told Mr. Mitchell.

She added that “weapons with bump stocks have triggers that function in the same way. They—through a single, right, pull of the trigger or touch of the trigger, you achieve the same result of automatic fire.”

Mr. Mitchell countered that “a single discharge of the trigger produces only one shot. It doesn’t produce a round of automatic fire. The only way you get to repeated shots with a bump stock equipped rifle is for the shooter himself to continually undertake manual action by thrusting the forestock of the rifle forward with his non-shooting hand.”

Part of the confusion surrounding the statute involves ATF’s contention that “single function of the trigger” under federal law included a “single pull of the trigger.” Both Justice Neil Gorsuch and Mr. Mitchell cast doubt on that interpretation, noting that “function” was a transitive verb.

“People don’t function things,” Justice Gorsuch said. “They may pull things, they may throw things, but they don’t function things.”

Justice Kagan suggested that Mr. Mitchell’s interpretation lacked common sense.

“I view myself as a good textualist,” she said. “I think that that’s the way we should think about statutes. It’s by reading them.”

“But, you know, textualism is not inconsistent with common sense,” she added. “Like, at some point, you have to apply a little bit of common sense to the way you read a statute and understand that what this statute comprehends is a weapon that fires a multitude of shots with a single human action.”

“Whether it’s a continuous pressure on a … conventional machinegun, holding the trigger, or a continuous pressure on one of these devices on the barrel … I can’t understand how anybody could think that those two things should be treated differently.”

Justice Alito asked Mr. Mitchell whether his case was one where “the literal language of the statute had to control even though it’s pretty hard to think that Congress actually meant that to apply in certain situations.”

Potential Congressional Action

Justice Gorsuch indicated he thought Congressional action would have been preferable to an ATF rule interpreting prior legislation. He also asked about former Sen. Dianne Feinstein (D-Calif.) criticizing the use of regulation to ban bump stocks.

Justice Kavanaugh noted that bump stocks didn’t exist around the time of the 1934 law’s passage. He went on to ask Mr. Fletcher: “What’s your explanation, maybe common-sense explanation or some other explanation, for why, when this does become an issue, the Bush Administration, the Obama Administration, Senator Feinstein, all say no?”

Outside of the Court, Mr. Cargill told The Epoch Times he thought Congress had authority over the issue but didn’t think it should pass a law regulating bump stocks.

The Epoch Times asked both he and Mr. Mark Chenoweth whether bump stocks were protected by the Second Amendment. “I don’t know,” Mr. Cargill said.

Mr. Chenoweth similarly said he didn’t know about the Second Amendment question and would have to look at how history did or didn’t support bump stocks’ protection under the Constitution.

“We look at this as an abuse of administrative power case, not as a Second Amendment case,” he said. “If Congress had passed this law, we wouldn’t be challenging it.”